20 April 2017

The President Alone Cannot Overhaul American Immigration Policy

The New York Magazine's Daily Intelligencer has a great article that makes the point I have been emphasizing in class for the past two weeks: rarely can the President alone overhaul American domestic policy. As I mentioned in my Constitutional Law class yesterday, President Trump this week issued an executive order to make it harder for H-1B Visas to be issued. The H-1B Visa is given to highly skilled workers where an employer claims that there are no Americans who can do the job. The President's order doesn't change the law, it simply enforces it differently.

Just how is explained very nicely in the NY Mag piece:
The order will direct the the departments of Labor, Justice, State, and Homeland Security to conduct reviews of the H-1B visa program and propose reforms. The Trump administration says current rules are going unenforced, and they want to see changes that ensure the visas are only going to “the most highly skilled workers.” According to the Washington Post, administration officials described various ways this could be accomplished: "The officials said reform could first come through administrative changes, such as raising the visa application fees, adjusting the wage scale to more accurately reflect prevailing salaries in the tech industry, and more vigorously enforcing violations. It could also change the lottery system to give foreigners with U.S. master’s degrees a leg up."
In short, as head of the Executive Branch, President Trump is asking an executive branch agency to enforce existing rules more forcefully. He is not changing the law, he is simply asking that it be enforced differently!

But as the article points out:
Signing an executive order lets Trump highlight his commitment to fulfilling his promise to protect American workers, but he can’t do a thorough overhaul of the program on his own. Changing certain fundamental elements, like how many visas are awarded each year, requires action from Congress.
This illustrates very nicely the point I was trying to make in class: the President can change how a law is enforced, but he cannot change the law itself. Only the Legislative Branch can do that.

19 April 2017

18 April 2017

Executive Branch Appointments

In my last post before the break, I directed readers to the National Constitution Center's page explaining how Supreme Court Justices are selected. Another selection process that has been underway since January and continues is the appointment of officers of the Executive Branch. While most of the various department heads have now been appointed and confirmed, there remain a large number of lower, yet important positions that remain to be filled. Many blame the President himself for the number of vacancies that still remain, but the process for filling these positions could arguably be equally to blame.

As the National Constitution Center (NCC) points out:
The Constitution, in Article II, Section 2, says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.”The Appointments Clause allows the President to make nominations for appointed positions like cabinet officers, but the Senate controls the process, including the rules that allow a nomination vote to get to the full Senate floor. 
 Read the rest of the NCC post to learn more about this process.

13 January 2017

How the Next Supreme Court Justice Will be Chosen

It is expected that one of the first official acts that will be undertaken by President Trump is the appointment of a U.S. Supreme Court Justice. The National Constitution Center has a very informative piece up on its website about how this process will play out.

16 December 2016

Nothing Obscene About Giving the Finger

At least according to a Pennsylvania Appeals Court there isn't. As Prof. Noah Feldman writing over at Bloomberg News, the case before the court:
involves facts that would be funny if they weren’t tragic in the everyday sense of the term. Jason Waugaman was dropping off his children, 6 and 7, at the apartment building of his ex-wife, Kacie Boeshore. She came down to meet them in the parking lot; Waugaman was kissing the kids goodbye.
According to Boeshore’s testimony, as she walked away with the kids, Waugaman said something she couldn’t hear. She turned around, walked back and stood several feet in front of his car demanding to know what he’d said. Instead, Waugaman drove off, giving his ex the finger and (Boeshore testified) narrowly missing her.
Police in Hampton Township, Pennsylvania, near Pittsburgh, charged Waugaman with reckless endangerment for the driving and disorderly conduct for the gesture. A judge acquitted Waugaman of the first, more serious charge, but found him guilty of disorderly conduct under a state statute that makes it a crime to intentionally “cause public inconvenience, annoyance or alarm” by using “obscene language” or an “obscene gesture.”
Students are encourage to read the rest of the article as it clearly explains why courts are so reluctant to categorize something as non-speech. Students in my constitutional law class will know what I am talking about here (at least I hope they do).

07 December 2016

England Considering Raising Small Claims Court Limits

Students in my introduction to common law courses learn that England has a multi-tiered system of civil procedure. At the one extreme are the complex cases where the parties have the ability to undertake all kinds of pre-trial preparation. At the other end is are the small claims cases where the amount is so small that it makes no sense to hire a solicitor. In between is a tier where the process is probably too complex for a claimant or defendant to appear without representation.

At the moment, personal injury claims with potential damages of more than £1,000 are barred from the small claims process and must be heard using the more expensive and complex middle tier process. Recently, the Ministry of Justice announced that it would like to raise the limit to £5,000. This would result in more cases being heard using the small claims process, a process that normally does not require parties to hire legal representatives. As the Law Society Gazette points out, The Law Society is none too pleased about this development, claiming that it will result in courts becoming clogged and parties obtaining less for their injury than they otherwise would. Of course, solicitors also will lose some business.

Follow the link to the Law Society Gazette to obtain a better understanding of how this system works and what these changes might mean for parties.

29 November 2016

Judicial Review in UK News

Students in my Introduction to Common Law courses in Münster and Osnabrück eventually hear me struggle with explaining the concept of judicial review in England. This phrase is used in a much more narrow sense than it is in the United States, which results in this American struggling to clearly explain how it works. Well a recent case that is headed to the UK Supreme Court provides us with an excellent example of what judicial review is and how it works in England. The case involves a young woman living in Northern Ireland who wished to terminate her pregnancy. The wonderful blog Legal Cheek explains:
In 2012, A — who was 15-years-old at the time — fell pregnant, but was unable to obtain a termination in her home country because of its stringent anti-abortion laws. The Abortion Act 1967, s1 of which lays down the mechanism for a legal abortion, does not apply in Northern Ireland, meaning women can only legally access the procedure if her health is at serious risk. Women who have been raped cannot access abortions legally, nor can victims of incest or women carrying foetuses with fatal abnormalities. The appellant did manage to terminate her pregnancy by travelling to a private clinic in England at the cost of £900, but has now brought a judicial review against the Secretary of State for Health, Jeremy Hunt, on two grounds.
The grounds included: 1) a failure by the Executive to abide by its duty to order facilities in Northern Ireland to provide the woman with termination services and 2) a failure by the National Health Services to provide such services to women in Northern Ireland as provided by an Act of Parliament. Interestingly, the second claim is being brought under the European Convention of Human Rights.

In short, this case illustrates nicely the difference between an appeals court hearing an appeal and engaging in judicial review. An appeal involves questioning whether the lower court or government body made an improper decision under the law. Judicial review, on the other hand, asks whether the government acted improperly or failed to act when it was required to. The case will be heard soon by the UK Supreme Court.  

24 November 2016

Nuisance in the News

It's rare that a dispute involving property law makes its way onto this blog, but a recent one caught my eye and is most certainly worth mentioning here. Students in my Introduction to American Law course should be familiar with the concept of nuisance, a legal claim that can be brought to stop activity that is interfering with a property owner's right to enjoy his property. At issue in the case I came across is an amazing Christmas light display (Warning - readers who are environmentally conscious might want to avert their eyes). In this instance it was the city who filed the lawsuit on behalf of neighbors who had complained for years about the brightness of the growing light display. Apparently, this display has become so well known, it is now a tourist attraction, complete with double decker buses rolling through the quiet streets of this neighborhood! To find out what happened in the case, students should check out the video and accompanying news article.

22 November 2016

The "Did Not Vote" Won

I came across this interesting map on Twitter a few days ago that really drives home the point about how pathetic voter participation is in the United States. The map looks at how many eligible voters there are in each state and then sorts the vote by people who voted for the various candidates and those who did not vote. In all but only handful of states the people who did not vote for President outnumber those who voted for a particular candidate. The map then awards the Electoral College votes to the "did not vote" category in each state where they outnumbered a particular candidate and comes out with a landslide victory for "Did Not Vote" in the Electoral College.

What Jurors Can Say After a Trial Comes to the Supreme Court

In class we learn that as a general rule, jurors are not allowed to testify about what happened in the deliberation room during deliberation. The origins of that rule, as well as it limits, are discussed in this vocabulary rich article by Prof. Garret Epps in the Atlantic Magazine:
Every American knows that, if charged with a crime, he or she has a right to “a speedy and public trial by an impartial jury.” What can a defendant do if the jury “decides” by the impartial flip of a coin? Three centuries of common law cases suggest that the answer is “nothing.” That’s because courts usually won’t allow jurors to testify about what happened behind closed doors. Next week, the Supreme Court will hear a case testing whether that rule applies even when two jurors swear the deliberations contained overt racism against the defendant. A ruling either way would have important implications for a core part of the American criminal justice system––the right to an impartial trial by jury.



20 November 2016

$19 Million Spent By Outside Groups on Judicial Elections



How we select our judges in the United States is perhaps one of the things that surprises students in my introduction courses the most. Almost three quarters of the states in the United States place the names of judges on election ballots, and let the voters decide whether they should remain on the bench. Some do this using a process called retention, while others allow for open, competitive elections, just like any other elected office.

As is the norm in the United States, most people obtain their information about candidates for elected office via television commercials. These commercials are usually sponsored by the candidates themselves, but increasingly outside political action groups are funding commercials for the candidate of their choice. The same holds true for judicial elections. According to the Marshall Project, political action groups not directly affiliated with a political party or a candidate spent over $19 million on judicial elections this past election cycle.  The article goes on to note that this spending for the most part failed to unseat their intended targets. This, however, will likely not dissuade people from contributing to these efforts in the future.

Those interested in a amusing take on the idea of electing judges should watch the John Oliver piece above. Be warned, this is HBO, so the language might be a little rough.